Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Subsidies of the Australian clean energy package

The Australian Clean Energy Package has been introduced to respond to the global challenge of climate change and reduce Australia’s greenhouse gas emissions. It includes legislation to establish an emissions trading scheme. In support of the entities that are liable under this Package, there are a number of assistance measures offered to alleviate the financial burden that the Package imposes. This paper considers whether these assistance measures are subsidies within the context of the law of the World Trade Organization. In order to do this, the rules of the Agreement on Subsidies and Countervailing Measures are examined. This examination enables an understanding of when a subsidy exists and in what circumstances those subsidies occasion the use of remedies under the law.

The border adjustments of the Australian clean energy package

Climate change is a global challenge. For this reason, it has been suggested that a global solution is necessary. In Australia the Clean Energy Package has been introduced with a purpose of reducing Australia’s greenhouse gas emissions inventory, and responding to international obligations. This Package contains the institutional framework for an emissions trading scheme. The Package also includes amendments for other existing legal arrangements. These arrangements include a greenhouse gas emissions price on certain imported products. With this in mind the purpose of this paper is twofold. First, to consider the border adjustments and import charges of the Clean Energy Package and determine whether these comply with the rules of the World Trade Organization. Second, to analyse whether a border tax adjustment could be included in the Package for emissions intensive trade exposed (EITE) products. This paper concludes that, although the existing arrangements appear to comply with the WTO legal requirements, a border adjustment on EITE products could not be implemented in a manner that would comply with these rules.

Federal Court Rules 027 r 11 - Subpoena to give evidence

In Australian Prudential Regulation Authority v Rural and General Insurance Let [2004] FCA 933, Gyles J considered what he described as "a novel question", namely, whether taking steps to prepare to give oral evidence when subpoenaed to attend for that purpose, including the obtaining of legal advice and assistance, could be recovered by the witness under O 27 r 11 of the Federal Court Rules

Fire design rules of light gauge steel frame walls – a review

Cold-formed steel members are widely used in load bearing Light gauge steel frame (LSF) wall systems with plasterboard linings on both sides. However, these thin-walled steel sections heat up quickly and lose their strength under fire conditions despite the protection provided by plasterboards. Hence there is a need for simple fire design rules to predict their load capacities and fire resistance ratings. During fire events, the LSF wall studs are subjected to non-uniform temperature distributions that cause thermal bowing, neutral axis shift and magnification effects and thus resulting in a combined axial compression and bending action on the LSF wall studs. In this research a series of full scale fire tests was conducted first to evaluate the performance of LSF wall systems with eight different wall configurations under standard fire conditions. Finite element models of LSF walls were then developed, analysed under transient and steady state conditions, and validated using full scale fire tests. Using the results from fire tests and finite element analyses, a detailed investigation was undertaken into the prediction of axial compression strength and failure times of LSF wall studs in standard fires using the available fire design rules based on Australian, American and European standards. The results from both fire tests and finite element analyses were used to investigate the ability of these fire design rules to include the complex effects of non-uniform temperature distributions and their accuracy in predicting the axial compression strengths of wall studs and the failure times. Suitable modifications were then proposed to the fire design rules. This paper presents the details of this investigation into the accuracy of using currently available fire design rules of LSF walls and the results.

Analysis of risk management disclosures by Australian publicly listed companies

In the aftermath of the global financial crisis, effective risk management (RM) and its communication to stakeholders are now considered essential components in corporate governance. However, despite the importance of RM communication, it is still unclear how and to what extent disclosures in financial reports can achieve effective communication of RM activities. The situation is hampered by the paucity of international RM Research that captures institution differences in corporate governance standards. The Australian setting provides an ideal environment in which to examine RM communication because the Australian Securities Exchange (ASX) has since 2007 recommended RM disclosures under its principle-based governance rules. The recommendations are contained in Principle 7 of the Corporate Governance Principles and recommendations (ASX CGPR). Accordingly, to assess the effectiveness of the AXS's RM governance principle, this study examines the nature and extent of RM disclosures reported by major ASX-listed firms. Using a mixed method approach (thematic content analysis and a series of regression analysis) we find widespread divergence in disclosure practices and low conformance with the Principle 7 recommendations. Certain corporate governance mechanisms appear to influence some categories of RM dislcosure but equity risk has surprisingly little explanatory power. These results suggest that the RM disclosures practices observed in the Australian setting may not be meeting the objectives of regulators and the needs of stakeholders.

Touching Texts : Adaptations of Australian Picture Books for Tablets

In order to explore some of the possibilities and constraints of picture books on tablets, this chapter addresses adaptations of contemporary Australian picture books for tablet devices. It considers how publishing technologies shape form and meaning of picture books, and attends particularly to the impact of interactivity and adaptation on such meaning. After discussing some contextual issues for electronic literature, this chapter explores the print and tablet versions of three picture books: Libby Gleeson and Freya Blackwood’s Look, A Book! (2011), Nick Bland’s The Wrong Book (2009), and Shaun Tan’s Rules of Summer (2013).

The ACNC's new governance rules

Australian charities have a new regulator in the form of the Australian Charities and Not-for-profits Commission (ACNC) which began operations in December 2012; and new governance rules which applied from 1 July 2013. While there is some uncertainty over the ACNC's future, the new legislative framework currently applies to approximately 58,000 charities which seek federal tax concessions and other benefits, and includes governance standards that apply across charitable organisational forms (company, trust and association) with some exceptions. The governance standards are a minimum benchmark that many charities will already meet, if they are companies or incorporated associations.

Driver licensing experience of Korean Australian novice drivers

Graduated driver licensing has been shown to improve the safety of young drivers but relatively little is known about how well it works for drivers born in countries where the licensing system is less sophisticated. This research used Bronfenbrenner's ecological model to examine the driver licensing experience of Korean Australian young drivers using driver and parent focus groups and an online survey of drivers. Accumulating the required supervised driving was more difficult for international students than those living with parents and differences in road rules (particularly relating to seat belt use) between the countries exerted an important influence on behaviour.

Kids, counselors and troubles-telling : morality-in-action in talk on an Australian children’s helpline

This article begins with the premise that morality is an intrinsic, although often invisible, aspect of everyday social action. Drawn from a corpus of fifty audiorecorded telephone calls to Kids Helpline, an Australian helpline for children and young people, we examine one call to show how the young caller and counsellor co-construct ‘morality-in-action’. Ethnomethodological understandings and, in particular, Sacks’ (1992) description of ‘Class 2’ rules and infractions show how an adolescent caller and counsellor collaboratively assemble moral versions of the caller. In puzzling out possible motives, the caller and counsellor can be seen to be attending to the implications of different moral versions of the caller. This attribution of motives is moral work in action, with motives contingently assembled, displayed and evaluated, with such work understood as displays of moral reasoning. The counselling call makes visible the counsellor’s interactional work to support and empower the client. Analysis such as this offers counsellors ways of understanding and making visible their interactional and moral work within helpline call interactions.

An analysis of risk management disclosures: Australian evidence

- Purpose Communication of risk management practices are a critical component of good corporate governance. Research to date has been of little benefit in informing regulators internationally. This paper seeks to contribute to the literature by investigating how listed Australian companies in a setting where disclosures are explicitly required by the ASX corporate governance framework, disclose risk management (RM) information in the corporate governance statements within annual reports. - Design/methodology/approach To address our study’s research questions and related hypotheses, we examine the top 300 ASX-listed companies by market capitalisation at 30 June 2010. For these firms, we identify, code and categorise RM disclosures made in the annual reports according to the disclosure categories specified in Australian Stock Exchange Corporate Governance Principles and Recommendations (ASX CGPR). The derived data is then examined using a comprehensive approach comprising thematic content analysis and regression analysis. - Findings The results indicate widespread divergence in disclosure practices and low conformance with the Principle 7 of the ASX CGPR. This result suggests that companies are not disclosing all ‘material business risks’ possibly due to ignorance at the board level, or due to the intentional withholding of sensitive information from financial statement users. The findings also show mixed results across the factors expected to influence disclosure behaviour. Notably, the presence of a risk committee (RC) (in particular, a standalone RC) and technology committee (TC) are found to be associated with improved levels of disclosure. we do not find evidence that company risk measures (as proxied by equity beta and the market-to-book ratio) are significantly associated with greater levels of RM disclosure. Also, contrary to common findings in the disclosure literature, factors such as board independence and expertise, audit committee independence, and the usage of a Big-4 auditor do not seem to impact the level of RM disclosure in the Australian context. - Research limitation/implications The study is limited by the sample and study period selection as the RM disclosures of only the largest (top 300) ASX firms are examined for the fiscal year 2010. Thus, the finding may not be generalisable to smaller firms, or earlier/later years. Also, the findings may have limited applicability in other jurisdictions with different regulatory environments. - Practical implications The study’s findings suggest that insufficient attention has been applied to RM disclosures by listed companies in Australia. These results suggest that the RM disclosures practices observed in the Australian setting may not be meeting the objectives of regulators and the needs of stakeholders. - Originality/value Despite the importance of risk management communication, it is unclear whether disclosures in annual financial reports achieve this communication. The Australian setting provides an ideal environment to examine the nature and extent of risk management communication as the Australian Securities Exchange (ASX) has recommended risk management disclosures follow Principle 7 of its principle-based governance rules since 2007.

Assessing taxpayer response to legislative changes: A case study of ‘in-house’ fringe benefits rules

On 22 October 2012, the Australian Federal Government announced the removal of the $1,000 in-house fringe benefits concession when used as part of a salary packaging arrangement. At the time of the announcement, the Federal Government predicted that the removal of the concession would contribute additional tax revenue of $445 million over the following four years as well as an increase of GST payments to the States and Territories. However, anecdotal evidence at the same time indicated that the Australian employer response was to immediately stop providing employees with such in-house fringe benefits via salary sacrificing arrangements. Data presented in this article, collected from a combination of interviews with tax managers of four Australian entities as well as a review of the published archival data, confirms that the abolition of the $1,000 in-house fringe benefits concession was perceived as a negative change, whereby employees were considered the ‘big losers’ despite assertions by the Federal Government to the contrary. Using a conceptual map of tax rule change developed by Oats and Sadler, this article seeks to understand the reasons for this fringe benefits tax change and taxpayer response. In particular, the economic and political factors, and the responses of the relevant taxpayers (employers) are explored. Drawing on behavioural economic concepts, the actions, attitudes and response of employers to the rule change are also examined. The research findings suggest that the decision by Australian employers to cease providing the in-house fringe benefits as part of a salary-packaging arrangement after the legislative amendment was impacted by more than simple rational behaviour.